God vs Gavel
Time to End Government Handouts Based on Religion
The Clinton Administration initiated "charitable choice," which was the idea that religious groups should be able to receive federal funds for the social services they provide. The Bush Administration enlarged the program, and created the White House-based Faith-Based Initiative, which created an entire office in the executive branch to deliver such funds.
At the start, conservative religious groups and leaders, like Jerry Falwell, publicly castigated the idea. They said that federal funds would come with too many strings attached and water down their religious mission. They also thought it was irresponsible for religious groups to belly up to the federal trough. That was when conservatives were fiscal conservatives first and "social conservative" was not yet a political category.
Once the river of funds opened, though, Falwell's organization, along with other evangelical groups among others quickly joined the line for federal funds. Instead of eschewing the potential interference of the federal government, they turned the tables and sought ways to have the taxpayers' money without government oversight.
Social service providers, like other employers, are subject to the federal civil rights anti-discrimination laws. Government contractors are not permitted to discriminate on the basis of race, color, religion, sex, or national origin in hiring. The religious groups obtaining the new federal funds demanded the right to discriminate on the basis of religion in their hiring for the programs being paid for by taxpayers.
For example, if a religious group wanted to treat drug-addicted teenagers, they lobbied for the right to obtain federal money and then hire based on religion as opposed to the quality of the social service provider applicant. So the experienced psychologist with years of experience treating the addicted could be passed over for the fellow religious believer without experience. During the Bush years, Congress considered such a policy and refused to enact it into law. So President Bush put in place an executive order to permit federal funding recipients to hire based on religious belief. Protestants would not have to hire Catholics; Jews would not have to hire Evangelicals, etc. It was based on yet another weakly reasoned Bush era Office of Legal Counsel memorandum, which argued that the Religious Freedom Restoration Act requires the government to permit religious groups to discriminate in favor of co-religionists in the delivery of social services.
During his campaign, President Obama promised to reverse the order, but at the very start of his presidency, you could see that his Administration likely would be captured by the same religious lobbyists that owned the Clinton and Bush Administrations. So he never reversed the order. Rather, he instituted an "Advisory Council" to make recommendations. He staffed it with clergy and representatives of religious organizations, with a couple of "self-described secularists" thrown in for the appearance of evenhandedness.
No one was included, however, who was a fiscal hawk, or devoted to ensuring that federally funded social service providers provide the highest possible level of service to our citizens. The list, just standing by itself, speaks volumes.
There will be a hearing this Thursday in front of the Subcommittee of the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties, in the Rayburn Building. Though testimony is not yet public, the advance notices indicate that the Advisory Council will announce its recommendations to the President. Given the makeup of the Council, it will be shocking if one of their ideas is to go back to ensuring that federally funded providers follow the anti-discrimination laws.
But there has never been a more important time to reverse course. We face high unemployment, gigantic government overruns, and serious needs among citizens for meaningful and strong social services. If the federal government is going to subsidize social services, it has the obligation to demand the highest quality. And anyone working with those funds should have to be chosen based on credentials and experience, not religious identity. Any argument for a "bye" just because a group is religious is just bad public policy.
President Obama has endorsed the conservatives' call to end pork-barrel spending. Here is a great place to start.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge, 2008) and God vs. the Gavel: Religion and the Rule of Law (Cambridge, 2005, 2007).